Litigation Support

At the onset of a large litigation, one of the big decisions you’ll need to make is whether your legal team can handle the entire eDiscovery process, or whether parts of that process should be outsourced.  

One of the largest investments of time and resources is document review. Often, firms wait until all documents have been processed before deciding how review will be managed. Fortunately, we are starting to see more review planning at the data identification and collection stages. The earlier you begin planning, the greater your ability to adapt to changing scope, deadlines and developments as the case progresses. 

In deciding whether to outsource review, the three biggest factors to consider are whether the work exceeds your in-house resources, the complexity of the project, and of course, the goal of cost containment.

1. Work Exceeds Resources

If you have collected a large volume of documents and/or have limited in-house resources to dedicate to your review, outsourcing may be essential, especially under tight deadlines.

The use of technology-assisted review (TAR) technologies is now commonplace in eDiscovery. While TAR tools like RelativityOne’s Active Learning (AL) can significantly pare down the number of documents requiring eyes-on review, not all file types are suitable for AL. You may still be left with thousands of Excel spreadsheets and images that need to be looked at.  

It’s a simple math equation. An optimistic review pace is roughly 60 documents an hour, so a five-person team devoting a 40-hour workweek will at most get through 12,000 documents a week.  If your document count is in the six digits and your deadline is in a month, then even if you’re using the latest and greatest TAR technology, doing it yourself is simply not feasible, especially not defensibly so.  And when your review team is constrained to in-house staff, unanticipated events and competing work priorities may put you at even greater risk of not completing your review in time and/or with sufficient accuracy to meet your legal obligations.

A third-party document review provider like Ricoh will have a large roster of document review lawyers to complete projects within the allotted timeframe. The team can be scaled up as necessary if circumstances arise that require more staffing, such as the identification of additional documents for review. Since outsourced review lawyers are typically independent contractors, they are incentivized to dedicate long hours, including evenings and weekends, to meet your deadline.

2. Complexity

Document review for the purpose of discovery is a complex and often iterative process that usually involves several components and steps, including:

• Assessing documents for relevance, issues, privilege, confidentiality and/or PII, and identifying any key documents;
• Applying redactions to privileged or other non-disclosable content;
• Re-reviewing certain documents, as nuances in assessments of relevance and privilege are typically identified and clarified over the course of the review;
• Crafting detailed, targeted searches to conduct quality control measures;
• Finally, if your project utilizes tools such as Active Learning, your reviewers will need to understand the concepts underpinning this program, which differ from a legal review perspective. Specifically, they will need to be able to distinguish documents that are relevant from those that, while not relevant, are still responsive in terms of helping to mature the classification model.

Engaging a team of dedicated, experienced and technology-savvy review lawyers will ensure an accurate and efficient review. Your project will further benefit with a team curated from a wide roster of review lawyers and which may have specific expertise in the subject matter of the litigation, such as finance or construction.  Independent reviewers may also offer a range of language skills, which is so valuable in a world of increasingly globalized operations.

3. Cost Containment

Since review is one of the biggest expenses in the eDiscovery process, a well-thought-out review strategy is critical to keep this line item under control. It’s a common misconception that outsourced review is costly. The fact is that dedicated experts can complete this work faster and more accurately, which will always save you money. Doing the work properly the first time will also stave off potentially costly headaches down the road – like challenges from opposing counsel on the defensibility of your review.

Team collaboration among in-house counsel, external counsel, and services providers – each leveraging their own expertise – will mitigate risk, reduce costs, and set up the discovery process for success.

Marta Young leads a large team of experienced document review lawyers.  To learn more about Document review, visit Marta’s blog post on The Five Stages of Document Review here.

Natasha Doucas is a bilingual consultant with over 15 years of experience applying technology solutions to the discovery process. She plays a significant role in supporting her customers with a tailored and defensible solution that meets specific people, process, technology, and budget requirements.